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Model Releases: Why US laws are important to non-US photographers

Tuesday, February 26, 2008

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A common question I get about my book on Model Releases
is whether the book applies to non-US photographers. I'm American
and I cite many US laws in the book, so it's natural to wonder whether
it would apply to non-US readers.

First, if you haven't read it yet, the chapter, Model Release Primer
explains that you don't get model releases to protect yourself.
Photographers have no liability when it comes to how other people
publish their photos. Therefore, learning about model releases is
not intended to help you protect yourself against your own laws
in the country you reside in. Rather, model releases are there to
protect the buyers of your images from being sued for violating
publicity laws. When you offer images that other people can publish
safely, you make more money. That's why you get model releases.

To better monetize images through the global market of buyers, you need
to understand that everyone, even local buyers, may still be subject
to US laws. Whether intentional or not, the marketing materials that
companies use often end up "landing" in the US somewhere, and they
do so in such a way that could trigger US laws. The US is the largest
consumer market in the world, and as such, almost all companies large
and small have some kind of business relationship in the US. Therefore,
if they are going to advertise or market themselves in a way that even
touches US territory, US laws will apply.

That's why photographers all over the world need to understand US-based
laws on publicity and privacy, which is what model releases are intended
to protect against.

For example, say your local Canadian bank wants to license your photo of
a farmer in Alberta for ads it places on web sites. You may think that
has nothing to do with US publicity laws. But, if the bank targets any
customers at all in the US, even if they are investment partners or other
kinds of trade organizations, then the bank is said to have "reach" into
the US. And once that happens, any business it conducts within the US
(such as that advertisement) is subject to US laws. (Not all its business
conduct is subject to US laws, only those portions where the "reach"
penetrates borders.) In fact, Royal Bank of Canada does quite a bit of
business in the USA, directly targeting US consumers, a fact that few
Canadian photographers I've interviewed were aware of. It is here
where your photo of a farmer could allow him to file a claim in US courts
for the use of his photo if he hadn't released it. (His claim would be
against the bank, not you.)

It is not uncommon for non-US entities to file claims in US courts under
US laws, even though none of the parties involved may be US citizens.
(My book gets into details about how and why all this works.)

If the publisher can be shown to have such "presence" in the US,
a claim can be filed in the US under US laws, regardless of the
nationality of any of the parties involved. If you are from another
country, and take a picture of someone in yet another country, and license
it (without a release) to a company from yet another country, but they
used it in an ad in a magazine that is published or distributed in
the U.S., the subject could file a claim against that company in the US
under US laws.

Because of this, international companies that advertise in international
magazines, or on the internet, or on television must be cognizant of laws
that apply in each of the countries in which it has "presence." While that
may sound onerous (it is), there's one more critical fact: the US has
some of the most punitive laws and litigious culture than any other
country. So, it is more likely that a company that complies with US laws
is probably covered for most other countries as well. And you want to
sell photos to those companies.

Indeed, proving that a company has "presence" in the US could be onerous
for the claimant as well. Clever defense lawyers will do their darnedest
to refute such broad interpretations of law. But, clever lawyers act on
behalf of both sides, so this sword cuts both ways. Still, it's true
that a local German company that sells local beer to a limited geographic
region is not going to get called into a US court just because they happen
to have a website that has an unreleased photo of someone and that website
can be seen in the US. It'd be hard to convince a judge that there's any
real "presence" there. So, let's not get carried away with ourselves:
not every use of any photo is suddenly subject to US laws or courts.

Now, let me stand back and remind you of your job as a photographer:
to cast the widest net to catch as many buyers as possible of your photos.
If you are knowledgeable of (and comply with) US laws in your photo
business, you will not only get more potential US-based buyers of your
imagery (not a small market by any measure), but you'll have a better
reach for your local buyers as well. And that's really what this is
all about.

For completeness, there's the other side of the coin that may surprise
many people. If you took a photo of an American citizen and licensed it to
a magazine in Cuba, where there are no such privacy or publicity laws, the
infringement took place in a jurisdiction where no such protections are
provided, and no claim can be made. The fact that the subject is American
is irrelevant. You can publish naked pictures of Paris Hilton in Cuba and
she can't sue you. (Of course, the Cubans authorities might not take too
kindly to it, but that's a business decision you'll have to make.)

In summary, U.S. laws still apply if you license images to clients that
publish in, or distribute to the U.S., which covers a lot of international
media. Regardless of where you live, or to whom you license photos, your
clients may need to consider U.S. laws, which, in turn, can affect
business decisions you make. So, it's in your interests to understand US
laws.

And yes, this is all covered in my new book on
model releases. And, for what it's worth,
the combination of the low value of the dollar, and some really
great postal rates I've gotten, it's a bargain when you buy it
on
my website.

(NOTE: the shameless bit of self-promotion you just saw was that of a
sudden switheroo to my being the lowly salesman type. I disavow my actions
on this matter, as it was imposed upon me on the advice of my PR rep, who
also happens to be me. But that's a technicality that you can take up with
any one of my vast arsenal of lawyers in waiting.)